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Liberty versus Security (Lesson 2)
Push's book notes: War and Liberty by Stone - xiii; goal: “to explore…how well we have—or have not—preserved our constitutional rights under the unique stresses of wartime.” Ch 1 – The half war w/ France - 2; during Napoleonic wars, US struggled to maintain its neutrality btw England/France; - 3; Federalists: “paramount end of govt was to protect the rights of property and the stability of society.” -- “The Republicans…held an ardent faith in popular democracy.” - 5; recurrent theme during wartime: status of aliens; - 7; Sedition Act of 1798; suspected to have political motivations as well to silence critics; - 13; Vermont Congressman Matthew Lyon convicted under Sedition Act; 4 mos in jail; - 16; the act was taken up as a war measure to strengthen nation via France; turned into political weapon in battle btw Fed/Anti-Feds; - 17; “the protection of freedom rests ultimately with the people themselves.” -- 40 yrs later, Congress paid reparations for those imprisoned under Sedition Act - 18; “when we act in the heat of war fever, we are prone to overreact against those who question the need for military action.” - 20; 1974 SCOTUS case declared “under the First Amendment there is no such thing as a false idea.” Ch 2 – The Civil War - 23; “In any constitutional system, there exists a tension btw the need for govt constrained by law and the need for discretionary authority to respond to immediate crises.” - 26; who gets to suspend writ of habeus corpus? Congress or POTUS? May 26, 1861, Taney ruled that only Congress could do so; - 29; during riots of 1863, Lincoln suspended the writ nationwide; Lincoln invoked Article II responsibility as CINC to defend nation from destruction; - 30; author asserts that constitution grants writ suspension to Congress, not Pres; inferred from English system and framers’ likely mindset? - 31; Lincoln himself sought to limit the exercise of the suspension; - 32; Clement Vallandigham, former OH congressman, tested the policy; gave inflammatory speech on 1 May 1863; arrested by Union soldiers; Lincoln surprised and embarrassed by it; Lincoln later asserted that V had been labored to incite others to rebel/disobey the govt; - 40; “Even at the darkest moments, Lincoln openly addressed these questions and always insisted that ‘the Constitution mattered.’” Ch 3 – WW1 - 42; Wilson had no tolerance for criticism or disloyalty; said it must be “crushed out of existence” - 45; Espionage Act of 1917; “press censorship”, “disaffection”, “nonmailability” -- 47; Wilson: “authority to exercise censorship over the press…is absolutely necessary to the public safety.” - 54; during the war, US prosecuted some 2000 people for allegedly disloyal, seditious, or incendiary speech; - 55; “bad tendency” approach; if actions are likely to have a bad tendency as a result… - 57; Congress enacted Sedition Act of 1918; - 58; Schenck vs. US case on free speech; Holmes unanimous opinion: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent…” - 60; In Abrams vs US case 6 mos later, Holmes reversed his stance (seemingly); held to “clear and present danger” test vs. “bad tendency” -- 61; Holmes opinion: “…the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.” Ch 4 –WW2 - 64; “It is therefore predictable that a nation at war will keep tabs on both ‘alien enemies’ and ‘alien friends.’ But how a nation addresses these risks speaks volumes about its values, its sense of fairness, and its willingness to judge individuals as individuals.” - 66; Exec order 9066, signed 19 Feb 42 by FDR, authorized Army to exclude certain persons from certain areas… internment camps for Japanese-Americans as a result; 2/3rds of those interned were American citizens; 442nd RCT composed almost entirely of Japanese-Americans, all volunteers, many of whose families were interned in CA; most decorated unit in US Army history; 21 MOH, 52 DSC, 560 silver stars, 9500 purple hearts - 70; legacy of racial bias against Japanese was strong; - 73; argument of military necessity not credible; - 75; SCOTUS upheld pres order in multiple cases: Hirabayashi, Korematsu, Endo; these cases have become “constitutional pariahs” - 83; court’s action in Korematsu “stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.” - 84; “In periods of war fever, we are likely to lose our sense of perspective and needlessly sacrifice fundamental liberties—particularly the fundamental liberties of those we already fear and despise.” Ch 5 – The Cold War - 86; 1946, House Un-American Activities Committee (HUAC) name given the Un-American activities engaged BY the committed!; created to expose Communists and sympathizers; loyalty programs instituted - 91; Joseph McCarthy elected to Senate in 1946; his power grew over the years as he became the most feared man in America; - 100; Dennis case; Justice Vinson interpreted “clear and present danger” clause to mean something much wider; “in each case the court ‘must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’” - 105; Biddle’s observation; “The struggle for freedom is therefore no longer a struggle against an ‘oppressive tyrant,’ but a struggle against ‘the people themselves, who, in fear of an imagined peril’ may demand the repression of others.” - 106; “But a democracy is about means as well as ends. As the Supreme Court has recognized in protecting our fundamental rights, not only must the ends be compelling, but the means must be necessary.” Ch 6 – The Vietnam War - 111; Hoover (head of FBI) started using intel apparatus to spy on suspected anti-war protesters; started secret program (COINTELPRO) in the 1950s against Communists; in ’68, started using COINTELPRO against anti-war folk; - 116; govt program to “expose, disrupt and otherwise neutralize” the anti-war movement; - 118; FISA passed in 1978: “placed clear limits on how and when the govt may lawfully undertake foreign intelligence investigations.” - 122-3; issue of “pentagon papers” – huge document profiling Pentagon decision making into/during Vietnam; leaked to NYT in spring of 1970; USG sought to prevent its publication; -- 124; fundamental question posed by controversy: “who should decide whether it is in the national interest for classified info to be made public” - 126; SC decided Brandenburg ''case in this era, which affirmed a stricter use of “clear and present danger” ruling; “’the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe’ even express advocacy of ‘law violation except where such advocacy’ is likely to incite ‘imminent lawless action.’” Ch 7: War on Terrorism - 129; unending nature of GWOT make attention to civil liberties all the more important; - 130; secret detentions of noncitizens; secret/indefinite detentions of American citizens; Gitmo detainees, etc. - 133; ''Rasul vs. Bush in 2004 – SC ruled that habeus corpus still applies to Gitmo detainees; in Hamdi vs. Rumsfeld (2004), AMCIT detainee deprived of due process; -- 134; Justice O’connor: “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” -- Rumsfeld vs. Padilla; held w/o due process for 3 years; -- spring of ’06, Hamdan vs. Rumsfeld ruled that president had no constitutional authority to establish military commissions; result was Military Commissions Act of 2006 - 146-7; Jan 2006, NYT reported Bush admin NSA program to intercept calls/comms; - 147; admin tried to justify citing Authorization for the use of military force (AUMF) which overrode FISA; not the case, since FISA has war-time provision in it (15 days of latitude); - 148; “The suggestion that the Constitution makes the president the supreme ruler in matters of national defense is simply false.” -- Justice Jackson; “the Constitution makes the president CINC of the Army and Navy, not CINC of the nation.” - 160; “For a self-governing society to function, citizens must feel they are the governors, not the subjects.” Conclusion – a culture of civil liberties - 166; Jackson: “It is easy, by giving way to passion, intolerance and suspicions of wartime, to reduce our liberties to a shadow, often in answer to exaggerated claims of security.” -- “The central thesis of War and Liberty is that although each of these episodes presented a distinct challenge, in each we went too far in restricting our liberties.” - 169; “To fight a war successfully, it is necessary for soldiers to risk their lives. But it is not necessarily ‘necessary’ for others to surrender their freedoms. That necessity must be demonstrated, not merely presumed.” - 172; Justice Hand (1944); “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.” - 173; sees need to create a culture of civil liberties; - 176; Congress might consider various rules or protocols to follow in cases of civil liberty infringement; ensure sunset provisions for such measures; ensure representative voices in Cabinet; Taken from Snake's review document: